Appeals court to weigh Texas abortion law in January

A federal appeals court has scheduled oral arguments about the constitutionality of Texas’ tough new abortion law for the first week of January, setting up a rapid timeline that may accelerate the case’s expected trip to the U.S. Supreme Court.

Solicitor General Jonathan Mitchell and lawyers representing abortion providers are planning to appear in front of the 5th U.S. Circuit Court of Appeals in New Orleans during the week of Jan. 5, the state disclosed in a legal brief filed Monday.

That is the same week the court is scheduled to consider bans on gay marriage in Texas and Louisiana, making it a big week for laws of the Lone Star State. The appeals court could rule at any time after the arguments.

The abortion case has drawn national attention as it has bounced through the court system since the law passed last summer over a filibuster led by state Sen. Wendy Davis, who is now the Democratic nominee for governor against Republican Greg Abbott, who as attorney general is leading the defense of the law.

The law, known as House Bill 2, banned abortions after 20 weeks of pregnancy, placed heavy regulations on the use of a pill to accomplish the procedure, required abortion doctors to obtain admitting privileges at a nearby hospital and mandated that clinics meet the standards of hospital-style surgical centers.

About half of the roughly 40 clinics in operation before the law’s passage have already closed, and if it’s allowed to fully take effect the state could be left with eight, all in major cities and none south or west of San Antonio.

The surgical center standard provision is currently on hold due to an order by the U.S. Supreme Court, which also exempted clinics in McAllen and El Paso from the admitting privileges requirement until the legal challenge has been settled.

The high court’s order last month gave hope to abortion providers, especially because the 5th Circuit has proven unfriendly to their arguments. The New Orleans-based court has twice reversed lower court orders that found the law unconstitutional because of how greatly it reduced abortion access.

In Monday’s filing, the state urged the appeals court to once again uphold the law because clinics would remain in all major metropolitan areas and within a 250-mile drive for the vast majority of Texans.

The state also argued that the Supreme Court’s order did not serve as an indication that the high court believes the law is unconstitutional.

And, it argued, “even if one were to think that the Supreme Court’s order portends disagreement with the motion panel’s reasoning, it cannot absolve this Court of the responsibility to follow its previous abortion pronouncements.”